Citation Nr: 1014326
Decision Date: 04/15/10 Archive Date: 04/29/10
DOCKET NO. 07-08 530 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for hearing loss of the
left ear.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Jennifer Margulies, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1958 to
December 1959.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2006 rating decision of the
Oakland, California, Department of Veterans Affairs (VA)
Regional Office (RO), which denied the claim for service
connection for left ear hearing loss.
In his substantive appeal, the Veteran indicated that he
wanted a hearing at the RO before a traveling Veterans Law
Judge (VLJ). In response, the Veteran was informed by letter
that the hearing was scheduled for March 10, 2010. The
Veteran failed to report for the scheduled hearing. He also
did not request a postponement and has provided no
explanation for his failure to attend the hearing.
Accordingly, the request for a hearing is deemed to have been
withdrawn. 38 C.F.R. § 20.704(d) (2009).
FINDING OF FACT
The Veteran's left ear hearing loss did not begin in service,
manifest to a compensable degree within a year after service,
and competent and credible evidence of a nexus between left
ear hearing loss and active military service is not of
record.
CONCLUSION OF LAW
Left ear hearing loss was not incurred in or aggravated by
active military service, nor may in-service occurrence be
presumed. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Pertinent Law and Regulations
Service connection will be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R.
§ 3.303 (2009).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the Veteran had a chronic condition in service or during
an applicable presumptive period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the United States Court of
Appeals for Veterans Claims' case law, lay observation is
competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997).
In addition, if a condition noted during service is not shown
to be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection.
38 C.F.R. § 3.303(b) (2009).
Where a Veteran had active and continuous military service
for 90 days or more and sensorineural hearing loss (as an
organic disease of the nervous system) becomes manifest to a
degree of 10 percent within one year from date of termination
of such service, such disease shall be presumed to have been
incurred in, or aggravated by, service, even though there is
no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§
3.307, 3.309 (2009).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2009).
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004),
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative balance, with the Veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b)
(West 2002).
II. Analysis
Service connection for impaired hearing shall only be
established when hearing status as determined by audiometric
testing meets specified pure tone and speech recognition
criteria. Audiometric testing measures puretone threshold
hearing levels (in decibels) over a range of frequencies (in
hertz). Hensley v. Brown,
5 Vet. App. 155, 158 (1993). The determination of whether a
Veteran has a disability based on hearing loss is governed by
38 C.F.R. § 3.385 (2009).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2009).
In order to determine whether the Veteran has current hearing
loss, the Board looks at the VA examination provided to the
Veteran in July 2006. In relevant part, pure tone air
conduction thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
105
105
105
105
105
The Veteran also had a speech recognition score of zero
percent using the Maryland CNC test. The July 2006
evaluation revealed that there is a current diagnosis of left
ear hearing loss pursuant to 38 C.F.R. § 3.385 (2009). Thus,
the crux of this case rests upon consideration of whether the
Veteran's left ear hearing loss began in service or is in any
way related to active service.
The Board notes that a letter from the National Personnel
Records Center (NPRC) dated in November 2005 was sent to the
VA, noting that the Veteran's records or a portion of them
were recovered after the fire of 1973. The NPRC included
photocopies of the records they located, as the originals
were too fragile to be included. A review of the Veteran's
service treatment records shows that on entrance into service
in January 1958, the Veteran noted no problems with his ears
and a whisper test conducted showed findings of 15/15 in both
ears. The Veteran made no complaints regarding his hearing
and no audiological evaluation was conducted. On the
Veteran's separation examination dated in September 1958, the
Veteran noted problems with his ears. The examiner
documented that the Veteran had minimal hearing loss in his
left ear, attributed to childhood infections. A whisper test
documented findings of 15/15 bilaterally; however, no
audiological examination was conducted.
The Veteran did not submit any private medical records or any
VA treatment records. The first record of hearing loss post
service is the July 2006 VA examination. As hearing loss did
not manifest to a compensable degree within one year of the
date of separation from service, the presumptive regulations
are not for application. See 38 C.F.R. § 3.307.
As discussed above, in July 2006 the Veteran was provided a
VA examination for his hearing loss. Audiological testing
revealed severe hearing loss in the left ear with zero
percent speech recognition. The examiner noted that she did
not have the opportunity to review the Veteran's service
treatment records. However, she documented the Veteran's
contentions regarding his service. The Veteran reported a
gradual decrease in hearing in his left ear during service,
possibly due to lifting his helmet/ear protection off his
left ear when firing. He reported that he did not seek help
previously because he was able to function well and was not
interested in obtaining hearing amplification. The Veteran
reported that he was an armored engineer and was exposed to
high levels of noise during training and exercises. His DD-
214 confirms that he was involved with engineering tasks as a
pioneer in service. The examiner noted that hearing loss in
the left ear is not consistent with noise exposure,
especially considering the normal hearing in the right ear.
She stated that any noise that would be loud enough to
destroy all hearing in the left ear, would have affected the
right ear to some degree, even with the use of ear
protection. The examiner said she suspects that the hearing
loss is due to another cause. She concluded that it is not
likely that the Veteran's hearing loss is related to his time
in service.
As normal left ear hearing was demonstrated on examination
for enlistment into service, the presumption of soundness on
induction attaches as to left ear hearing ability. 38
U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009).
The Board notes that there is no positive nexus opinion on
file linking the Veteran's hearing loss with service.
Minimal left ear hearing loss was noted on the Veteran's
separation examination in 1958. However, the examiner
attributed the minimal loss to a childhood infection. The
separation examination report reflects whispered voice
testing was reported as 15/15 bilaterally. While audiometric
testing is undoubtedly more precise than a whisper voice
test, the whisper voice test is an alternative means of
testing hearing. See Smith v. Derwinski, 2 Vet. App. 137,
138, 140 (1992). Therefore, even though the treatment
records document minimal hearing loss of the left ear upon
separation, the whisper test reflected hearing within normal
limits.
Furthermore, the VA examiner documented the Veteran's
contentions and reports of service and conclusively stated
that hearing loss of this severity in the left ear is not
consistent with noise exposure. The examiner went on to
state that such significant hearing loss in the left ear is
incongruous with a lack of hearing loss in the right ear, if
it was in fact related to noise exposure. The examiner's
cogent logic makes it clear that she analyzed the information
presented by the Veteran and her conclusions are consistent
with the Veteran's service treatment records.
Additional evidence in support of the Veteran's service
connection claim for left ear hearing loss is his own lay
assertions. As a lay person, however, the Veteran is not
competent to opine on medical matters such as the etiology of
medical disorders. The record does not show, nor does the
Veteran contend, that he has specialized education, training,
or experience that would qualify him to provide an opinion on
this matter. Accordingly, the Veteran's lay statements are
entitled to no probative value. See Bostain v. West, 11 Vet.
App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183,
186 (1997).
While lay testimony is competent to establish the presence of
observable symptomatology, lay testimony is not competent to
relate the Veteran's left ear hearing loss to active service.
In fact, when the Veteran separated from service he reported
childhood infections, which caused some hearing loss. The
Veteran has failed to provide any probative evidence of
continuity of symptomatology. Thus, the Board finds that the
lay statements are of limited or no probative value.
As there is a prolonged period without complaint of, or
treatment for, left ear hearing loss, and there is no medical
nexus opinion linking the Veteran's hearing loss with
service, the Veteran's claims must be denied. The Board has
considered the applicability of "benefit of the doubt"
doctrine; however, the record does not demonstrate an
approximate balance of positive and negative evidence as to
warrant the resolution of these matters on that basis. Thus,
the Veteran's claim of entitlement to service connection for
left ear hearing loss is denied.
III. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183 (2002). This notice must be provided prior to
an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
In this case, the Veteran received notice of the evidence
needed to substantiate a service connection claim in November
2005 and was provided with notice of the type of evidence
necessary to establish an effective date of the disability
rating in March 2006.
Next, VA has a duty to assist the Veteran in the development
of the claim. This duty includes assisting him in the
procurement of service treatment records, pertinent treatment
records and providing an examination when necessary.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board is mindful that, in a case such as this, where some
service treatment records may be unavailable due to the fire
that occurred at the NPRC, there is a heightened obligation
to explain our findings and conclusions and to consider
carefully the benefit-of-the-doubt rule. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski,
2 Vet. App. 83, 85 (1992). While it is unfortunate that the
Veteran's service treatment records may be incomplete, the
appeal must be decided on the evidence of record, and the
Board's analysis has been undertaken with this heightened
duty in mind. As detailed above, there is no evidence to
support a finding of service connection for left ear hearing
loss.
VA has obtained the Veteran's service treatment records and
afforded the Veteran a VA examination. All known and
available records relevant to the issues on appeal have been
obtained and associated with the Veteran's claims file.
Therefore, VA has substantially complied with the notice and
assistance requirements and the Veteran is not prejudiced by
a decision on the claims at this time.
ORDER
Entitlement to service connection for left ear hearing loss
is denied.
____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs